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TMI Blog2023 (7) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... making all efforts to ensure quality control, many times it is noticed that the shawl which is otherwise 100% pure pashmina and manufactured/weaved from pashmina wool contains a few stray guard hairs superficially or somehow contamination found belonging to different species or for that matter of Tibetan Antelope (Chiru) / Shahtoosh. However, it is to be noted that accidentally falling hair are a case of contamination and by no stretch of the imagination can be said to constitute trading an illegal item or Animal Article as defined under Wildlife Protection Act, the PIL contends. The difference can be observed from fibers surface morphology in such parameters. The report is absolutely silent about any of these methodologies and even about the noticed characteristics - denial to cross-examine amounts to violation of principle of natural justice. The confiscation has been confirmed based on un-detailed insufficient report, the examiner whereof was denied to stand the test of veracity - the issue has already been raised by the shawl traders before Delhi High Court, the PIL has been accepted. Notice has already been issued. Finally, keeping in view that shawls of both kind of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommendation that the samples were drawn under Panchnama dated 12.06.2019. 2. Six pieces of shawls were stuffed in a box and sealed in the presence of Authorised Representative of appellant/exporter, CHA Wild Life Inspector and two witnesses. The test report from the lab was received vide letter No.3874/2019 dated 13.07.2019 confirming that the sample contains hair of Tibetan Antelope. However, the appellant objected the said report vide letter dated 25.07.2019 requesting for retesting thereof. The samples were got re-examined by Zoological Survey of India, Kolkata Lab. The said Lab also confirmed vide their letter No.653/1284 dated 22.01.2020 that the samples i.e. six Shawls contain guard hair of Tibetan Antelope. Based on the said two reports, that those six Shawls were seized under section 110 of Customs Act vide order dated 06.02.2021 on the reasonable belief that the said goods are liable for confiscation under section 113 of the Customs Act, 1962. Accordingly, the appellant was alleged to have deliberately engaged in dealing, keeping, concealing, selling or purchasing the shawls containing guard hair of Tibetan Antelope (prohibited goods) by mis-declaring and concealing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... methodology and reports conducted by reputed Labs in India and abroad certifying the absence of Shahtoosh fibres. It is impressed upon that the bare perusal of said test reports would reveal several details and various parameters that have to be observed while concluding such tests. Both the test reports in question are miserably silent about these details and parameters hence are liable to be rejected and the findings based upon said reports are also liable to be set aside. It is further submitted that as per Centre for Cellular and Molecular Biology (CCMP) also the identification using morphological keys are often not reliable and do not lead to successful prosecution of the offender. The circular rather emphasises on using modern technology which would lead to greater utility. A paper titled as the advantageous of scanning electron microscope in the forensic studies of hair in domesticated and wild animals published in international journal of scientific research has also been relied upon to impress that techniques as that of Scanning Electron Microscope (SCM) and of Lighter Transmission Electron Microscopy (TEM) are much more advantageous. The paper acknowledges that there c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two kinds of shawls and different scientific methods to distinguish the two. I judicially notice that Shahtoosh is the name given to the wool of Tibetan Chiru-Antelope. These species are trapped killed and skinned for their short fine fleece called Shahtoosh which is the warmest and the softest wool of the world. Pashmina on the other hand comes from Tibetan mountain goats without killing the animal but the fleece is obtained. Hence I can conveniently say that Shahtoosh is a wool obtained by killing the animal, resulting into the animal getting endangered whereas Pashmina is a craft. For the same reason the possession and sale of Shahtoosh are illegal in most of the countries including India, due to being prohibited under CITES and Wild Life Act, 1972. The table below gives few more differences. Sl. No. Characteristic Shahtoosh (s) Pashmina (P) (a) Guard Hair 1 EXTERNAL FEATIRES a Colour Fawn White b Average Thickness (pm) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct and has faint pattern 10. It has been judicially noticed that because of many consignments carrying Pashmina wool are being identified as Shahtoosh, possession and sale of which is banned under the Wild Life Protection Act and CITES that the shawl traders have filed a public interest litigation in February, 2022 before High Court of Delhi complaining of being subjected to Customs and Criminal Prosecutions on the ground that their export consignment carry articles suspected to be Shahtoosh. 11. Responding to a plea seeking improved infrastructure in the forensic science laboratories (FSLs) that are engaged in wildlife forensics, a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad of Delhi High Court has issued notice and sought response from several Ministries of the Central Government; the Central Board of Indirect Taxes and Customs, Wildlife Institute of India, Zoological Survey of India and Wildlife Crime Control Bureau. 12. The plea moved by three unions of exporters, manufacturers, traders, and artisans of Pashmina shawls demands modern Scanning Electron Microscopic technology and DNA testing procedures in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport is absolutely silent about what scientific method was being used by both those Labs. I observe from the arguments and notes provided by the appellant that either of the following methods can be used for identifying the guard hairs of Chiru (Sahtoosh) from that of Circus (Pashmina) goats. 1. Scanning Electron Microscopy (SEM) 2. Light Microscope 3. OFDA Technique 4. DNA Technique 19. In addition, the difference can be observed from fibers surface morphology in such parameters as already tabulated above. The report is absolutely silent about any of these methodologies and even about the noticed characteristics. I observe that both the times the reports have been objected. Appellant even requested for cross-examination of the examiner. However, the same has been denied. I am of the opinion that denial to cross-examine amounts to violation of principle of natural justice. The confiscation has been confirmed based on un-detailed insufficient report, the examiner whereof was denied to stand the test of veracity. As already observed above, the issue has already been raised by the shawl traders before Delhi High Court, the PIL has been accepted. Notice has already be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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